WELZEL v. BERNSTEIN

The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

ORDER

In accordance with the accompanying Memorandum Opinion, it is,
hereby, ORDERED that Plaintiff's Motion to Compel Testimony
Regarding Sexual Harassment Claim of Brenda A. Pilon Against
Richard Bernstein, and Memorandum in Support [#26] is DENIED.

It is further, hereby, ORDERED that plaintiff show cause
within ten days of the date of this Order why Plaintiff's
Motion to Compel Inspection should not be denied. Defendant will
then have ten days within which to respond.

SO ORDERED. MEMORANDUM OPINION

This case was referred to me by Judge Huvelle to resolve all
discovery disputes. Currently pending and ready for resolution is
Plaintiff's Motion to Compel Testimony Regarding Sexual
Harassment Claim of Brenda A. Pilon Against Richard Bernstein,
and Memorandum in Support and Plaintiff's Motion to Compel
Inspection.*fn1 For the reasons stated herein, the former
motion will be denied and plaintiff will be ordered to show cause
why the latter motion should not be denied.

I. FACTUAL BACKGROUND

Plaintiff, Karen M. Welzel, was formerly employed as the
Corporate Director of Human Resources of defendant, RB
Associates, Inc., a real estate ownership, management, and
development company operating in the Washington, D.C.
metropolitan area. In addition to filing suit against RB
Associates, plaintiff also names the following defendants: 1)
Richard Bernstein, the President and Chief Operating Officer of
RB Associates, 2) James Martens, the Executive Vice President and Chief Financial Officer of RB Associates, and
3) Crawford Sherman, Vice President of Hotel Operations of RB
Associates. Plaintiff claims that when she worked for RB
Associates, she was subjected to gender discrimination and that
she was retaliated against when she attempted to oppose this and
numerous other discriminatory practices that she
observed.*fn2

II. PLAINTIFF'S MOTION TO COMPEL

Plaintiff alleges that on November 26, 2000, at a meeting
between herself, Martens and Wim Pastoor, the then-Vice President
of Hotel Operations, regarding the company's newly formed
reservations office, Martens indicated that when he and Bernstein
had previously visited the office, "they saw two rows of black
faces looking back at them."*fn3 Defendant's Opposition to
Plaintiff's Motion to Compel Testimony Regarding Sexual
Harassment Claim of Brenda A. Pilon Against Richard Bernstein and
Memorandum in Support ("Defs. Opp.") at Exhibit 4, Deposition of
Karen Welzel, page 169. Plaintiff claims that she cautioned
Martens about making such statements and on September 28, 2001,
plaintiff sent Martens a three page memorandum about the incident
and copied Bernstein. On December 7, 200, plaintiff was denied a
pay increase as well as one week of vacation, both of which had been promised
earlier. According to plaintiff, this was done in retaliation for
her having written the memorandum.

On July 21, 2005, plaintiff deposed Bernstein. During the
deposition, plaintiff asked Bernstein questions regarding the
circumstances surrounding the alleged retaliation and discharge
of Brenda A. Pilon, a former General Manager for the Hotel
Lombardy, one of RB Associates' properties. In a suit brought
eleven years ago, Pilon accused Bernstein of sexually harassing
her and then firing her in retaliation for her having refused his
advances. Bernstein refused to answer these questions on the
grounds of relevancy. Pursuant to Rule 26 of the Federal Rules of
Civil Procedure, plaintiff has now moved this court to compel
this deposition testimony of Bernstein as well as Martens as to
the Pilon lawsuit.

A. Legal Standard

"For good cause, the court may order discovery of any matter
relevant to the subject matter involved in the action. Relevant
information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of
admissible evidence." Fed.R.Civ.P. 26(b)(1). As I have noted
previously on several occasions, the court must consider certain
factors prior to allowing the introduction of evidence relating
to other similar "bad acts":

Evidence of other "bad acts" is never admissible
simply to establish a propensity to engage in similar
acts. Fed.R. Evid. 404(b). Provided its relevance
outweighs it tendency to prejudice the opponent of
the evidence unfairly, evidence of other acts of
discrimination or retaliation similar to the
discrimination or retaliation charged have been
admitted to show, for example, motive or intent.
Miller v. Poretsky, 595 F.2d 780 (D.C. Cir. 1978);
Spulak v. K Mart Corp., 894 F.2d 1150, 1155 (10th
Cir. 1990); Herman v. National Broadcasting Co.,
744 F.2d 604, 609 (7th Cir. 1984); Jay Edwards Inc.
v. New England Toyota Distributor, 708 F.2d 814, 824
(1st Cir. 1983), cert. denied, 104 S.Ct. 241 (1983); Hairston v. WMATA, 1997 WL 411946
(D.D.C. April 10, 1997); Cardona v. Skinner,
729 F. Supp. 193, 199 (D.P.R. 1990). See also Dougherty
v. Barry, 604 F. Supp. 1424, 1439 (D.D.C. 1985)
(other acts of retaliation probative that a custom or
policy of retaliation existed). By the same token,
only discrimination or retaliation of the same
character and type as that is alleged is probative.
To establish that a prior discriminatory act is
probative of the intention or motive of the
defendant, there must be some reason to believe that
his motivation or intention in the acts in question
was similar to his motivation or intention on the
prior occasion. But, there is nothing in human
experience which suggests that a person who is
bigoted as to race is equally likely to refuse to
accommodate a disabled person unless one wants to say
that certain folks are "like that" and always act a
certain way as to people who are different from them.
But to say that is to draw the very inference the law
never permits a finder of fact to draw. Fed.R. Evid.
404 (a).

Thus, plaintiff has the burden of establishing the relevancy of
other bad acts by showing that "there must be some reason to
believe that his motivation or intention in the acts in question
was similar to his motivation or intention on the prior
occasion." Id.

B. Analysis

Information about the allegations made by Pilon, that she
suffered sexual harassment and then retaliation at the hands of
Bernstein, is neither relevant in itself nor reasonably
calculated to lead to the discovery of admissible evidence as to
what Martens said about "black faces" and what Bernstein did, if
anything, in retaliation for plaintiff's sending Martens the
memorandum about the incident. How Pilon's claims of sexual
harassment against Bernstein, based on Bernstein's rejected
sexual advances, arose and how the company addressed those claims
has nothing to do with the manner in which they addressed
Welzel's concerns regarding her own treatment by company
officials and the treatment of other company employees when
Welzel obviously makes no claim that Bernstein sexually harassed her.
Even though both Pilon and plaintiff claimed that they were
retaliated against, the nature of their claims is quite
different. That RB Associates may or may not have fired Pilon
following her rejection of Bernstein's advances is not probative
of how RB Associates and its senior officers, other than
Bernstein, responded to plaintiff's concerns about the following
alleged incidents: 1) the comment, discussed above, that Martens
made about the black employees comprising the reservation team,
2) a comment Martens made about the hiring of young, white,
American males, 3) Martens' decision to hire his daughter as the
Assistant Controller at one of RB Associates' properties, 4) RB
Associates' decision not to install a time clock so that the
hourly employees would be in compliance with the wage and hour
laws, 5) RB Associates' decision not to offer its employees
crisis counseling following the aftermath of the September 11,
2001 tragedy, 6) actions taken by RB Associates following
plaintiff's taking of medical leave, 7) actions taken by Sherman
in his supervisory capacity, 8) decisions made by RB Associates
regarding the treatment of male versus female employees, 9) RB
Associates' decision to institute a reduction in force at one of
its properties, 10) a comment Sherman made about overweight
people, and 11) plaintiff's final performance review. See
Coles v. Perry, 217 F.R.D. 1, 10 (D.D.C. 2003) (holding, inter
alia, that evidence relating to an agency's response to a claim
of discrimination is not relevant or probative of an agency's
response to a claim of retaliation; Morgan v. Federal Home Loan
Mortgage Corporation, 197 F.R.D. 12, 16-17 (D.D.C. 2000)
(holding, inter alia, that evidence that certain persons, other
than those who made the hiring decision in the case before the
court, were implicated in the writing of racially derogatory
graffiti or the sending of racially derogatory e-mail is not
probative of the fact that the hiring official was himself
racially biased); White v. U.S. Catholic Conference, 1998 WL 429842, at *5 (D.D.C. May 22,
1998) (holding, inter alia, that evidence that an employer was
sued for discrimination generally is not probative of whether or
not the employer had a propensity to discriminate based on a
specific quality such as a medical disability). See also Lisa
Marshall, The Character of Discrimination Law: The
Incompatibility of Rule 404 and Employment Discrimination Suits,
114 YALE L.J. 1063 (2005) (discussing the tension between the
need, in a Title VII case, to discern whether or not an employer
has acted in a similar discriminatory fashion in ths past with
constraints of Rule 404 of the Federal Rules of Evidence against
the introduction of evidence of an employer's prior acts for the
purpose of proving the employer's propensity for discriminatory
behavior).

As to Bernstein himself, the only specific allegations against
him are that he approved an increase in paid vacation for men but
not for similarly situated women, that he "ratified and
acquiesced" in Martens' racist reference to "too many black
faces" and in Martens' hiring of only white males. First Amended
Complaint at ¶¶ 66, 91-94. The specific allegations against
Bernstein personally in the current case are hardly rendered more
likely to be true by facts concerning the settlement of a
previous lawsuit based on Bernstein's alleged sexual behavior.

Moreover, as defendants correctly point out, plaintiff has the
complaint in the Pilon matter and can gain whatever information
he wishes from it, Ms. Pilon, and any one else who would have
been a witness to what occurred between Pilon and Bernstein. It
nearly goes without saying that plaintiff will have to find
admissible evidence of the prior "bad" act before the presiding
judge in this case will permit any mention of it and before she
concludes that its probative value exceeds its tendency to unfair
prejudice under Rule 403. There may come a time when that other
evidence is assembled and there remains a need for Bernstein's
additional testimony. Until then, there is none. Thus, even if I were
convinced that such testimony might be theoretically
discoverable, I would nevertheless prohibit the inquiry on the
grounds that what little probative force it might have is
overwhelmed by its tendency to waste time and resources,
particularly when the information concerning the Pilon suit is
known or easily available from another source. Fed.R.Civ.P.
26(b)(2).

III. THE INSPECTION OF RB ASSOCIATES' OFFICES AND HOTELS

The issue of the inspection of defendants' properties has not
been briefed in the traditional sense although the parties have
filed letters with the court as per the court's instructions.
Therefore, so that the court may now resolve the issue on the
record, the letters referenced below will be deemed to have been
filed with the court and will be docketed as follows.
Specifically, plaintiff's fax of July 28, 2005 and attachments
(totaling nine pages) will be deemed Plaintiff's Motion to
Compel Inspection ("Plains. Mot."). Defendant's fax of July 29,
2005 and attachments (totaling 7 pages) will be deemed
Defendant's Opposition ("Defs. Opp."). Finally, plaintiff's fax
of August 2, 2005 (totaling 16 pages) will be deemed Plaintiff's
Reply.

A. Legal Standard

Pursuant to Rule 34 of the Federal Rules of Civil Procedure,
"[a]ny party may serve on any other party a request . . . (2) to
permit entry upon designated land or other property in the
possession or control of the party upon whom the request is
served for the purpose of inspection and measuring, surveying,
photographing, testing, or sampling the property or any
designated object or operation thereon, with the scope of Rule
26(b)." Fed.R.Civ.P. 34(a). Under Rule 26(b), "[p]arties may
obtain discovery regarding any matter, not privileged, that is
relevant to the claim or defense of any party . . . [and]
[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).

"[R]elevant inspections may be objected to on any basis that
would support a Rule 26(c) protective order; namely annoyance,
embarrassment, oppression, or undue burden or expense." McKesson
Corporation v. Islamic Republic of Iran, 185 F.R.D. 70, 76
(D.D.C. 1999). When faced with such objections, courts must
balance the respective interests by weighing "`the degree to
which the proposed inspection will aid in the search for truth'"
against the "`burdens and dangers created by the inspection.'"
Id. (citations omitted).

B. Analysis

On May 18, 2005, plaintiff noticed an inspection of RB
Associates' headquarters and several of it hotel lobbies. Plains.
Mot. at 3. Apparently, plaintiff's counsel believed that he had
defense counsel's consent to such an inspection after the motions
for summary judgment had been decided. Id. at 1. It then
appears that plaintiff's counsel was informed that the inspection
of RB Associates' headquarter had already taken place. Id.
Plaintiff however disputes that he was given the access he sought
and now seeks the court assistance in compelling defendant to
provide such access as outlined in the notice of inspection.
Id. Defendant counters that it did allow plaintiff to inspect
defendant's headquarters and that plaintiff was told to call
several of the hotels to arrange for site visits, which defendant
contends that plaintiff did not do. Defs. Opp. at 1-2. Defendant
also argues that plaintiff failed to raise this issue within the
discovery time-frame established by the court, that the notice
was overbroad, that the information sought was irrelevant, and
that plaintiff merely seeks to harass and annoy defendants. Id.
at 2-3.

Defendant's argument about relevance is most persuasive.
Putting aside, for the moment, defendant's willingness to allow plaintiff to visit the various
hotel properties and headquarters, it not immediately apparent to
the court how such information is relevant to plaintiff's case.
Apart from perhaps obtaining some limited information as to the
makeup of defendant's employee population, it is not clear what
relevant information or information reasonably calculated to lead
to admissible information will be obtained from a tour of
defendant's properties. As I am not even confident that plaintiff
understands the necessity of showing why the site visit will
yield potentially relevant evidence, I will order plaintiff to
show cause within ten days of the date of this Memorandum Opinion
why its motion should not be denied.*fn4 Plaintiff had
better explain as precisely as possible why a site visit is
crucial to this case. Defendant may respond 10 days after.

An Order accompanies this Memorandum Opinion.

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